A PEACE TREATY ON THE KOREAN PENINSULA: DISTINCTIVE CHARACTERISTICS AND CORE ISSUES

A peace treaty refers to a comprehensive agreement between two or more hostile parties to end an armed conflict, serving as the legal and political instrument designed to promote post-conflict reconciliation and coexistence within the institutio-nalized framework. Although a peace treaty is a formally drafted legal commitment, it is difficult to grasp what it connotes through a traditional framework of international law. This is because there is currently no legally binding treaty that obliges the signing of a peace treaty after a state of war ends. Extrapolating from historic peace treaties, it is also problematic to find a generally applicable pattern as they vary in terms of their forms, proceeding, and detailed clauses. This is attributable to the fact that each treaty is signed under varying circumstances, and has to reflect the legal environment of the time of the conclusion.

II. HOW THE TWO KOREAS HAVE WEIGHED A PEACE TREATY

After the Korean War ended in an armistice, North Korea first proposed that the two Koreas should play a leading role in drafting and signing of a peace treaty that includes a mutual non-aggression pledge and disarmament plan. Pyongyang later veered from this plan, seeking to sign a non-aggression pact with the South and a peace treaty with the United States separately. After the 1991 Agreement on Reconciliation, Non-Aggression, and Exchanges andCooperation between South and North Korea, Pyongyang focused more on the US – NorthKorea relations. And the issues of the Korean Peninsula including the North Korean nuclear problem were dealt within the framework of the Six Party Talks before it was stalled. As a result of the 2007 Inter-Korean Summit, held in Pyongyang, the October 4 Declaration on the Advancement of South-North Korean Relations, Peace and Prosperity was announced. In the Declaration, the South and North recognized the need to end the current armistice regime and declare an end to the war. The Panmunjom Declaration for Peace, Prosperity and Unification of the Korean Peninsula was adopted after the 3rd Inter-Korean Summit held on April 27, 2018. And that was the first time for the two Koreas to make an agreement, in writing, to transform the 1953 Armistice Agreement into a peace treaty.

III. WHY SHOULD A PEACE TREATY REPLACE THE 1953 ARMISTICE AGREEMENT?

Declaring a truce should not be equated with a formal declaration of the end of war. And the 1950-53 Korean War ended with an armistice, not a peace treaty. With the 1953 Armistice Agreement, which is still legally valid, serving as a legal basis for the current armistice regime on the Korean Peninsula, the South and North are technically in a state of war. And the South and North reaffirmed in the Panmunjom Declaration that they are in a state of war by mentioning ”the current unnatural state of armistice”. The 1953 Armistice Agreement temporarily stopped open acts of warfare, and is now nominally effective for the most part. Considering that it is often the case the armistice agreement is expected to ultimately lead up to a peace treaty needed to establish a solid peace regime, it is imperative to weave a new legal framework to build a peace regime on the Korean Peninsula. With the two Koreas working together to expand exchanges and cooperation, some argue whether the signing of a peace treaty is an integral part of steps toward unification. Although a peace treaty in itself does not build a peace regime, it is undeniable, and also agreed by North Korea, that the South and North should work together to sign a peace treaty in order to bring an end to the current unnatural state of armistice and create a legal, institutional environment conducive to a robust peace regime on the Korean Peninsula.

IV. TOWARD A PEACE TREATY ON THE KOREAN PENINSULA:
ISSUES AND SUGGESTIONS

Since the 1953 Armistice Agreement that ended the Korean War, the Korean Peninsula has been divided over half a century, and it is difficult to take a sober view on who has won the war. Even if the South and North agree to a return to their peacetime posture, it would not be easy to set a detailed timeline of the process with the absence of similar cases that can be modeled on. Under these circumstances, it is advised that a peace treaty on the Korean Peninsula should not be bound by a traditional framework of international law in terms of forms, proceedings, and detailed clauses. It is also important that both South and North Korea should hammer out plans to create ”a unique model for a peace treaty on the Korean Peninsula” that best ensures the actual implementation of the treaty. Whether South Korea is entitled to be a Party to a peace treaty, which will likely replace the armistice, has been another point of doubt since it was not a signatory to the 1953 Armistice Agreement. But numerous peace treaties, signed after the end of the Cold War, tend to focus on which party is directly involved and affected by the treaty in determining eligibility for Signatory status. And it appears that the 1992 Inter-Korean Basic Agreement put an end to the controversy over South Korea’s eligibility for Party status. The North Korean nuclear problem has been posing the greatest threat to the peace and security of the Korean Peninsula. With regional players divided on the issue, there have been numerous discussions on denuclearization and the signing of a peace treaty. Since a peace treaty on the Korean Peninsula, which should be drafted and signed in a forward-looking manner, aims to establish a permanent peace regime on the Korean Peninsula, resolving the North Korean nuclear problem should be considered a precondition to the signing of a peace treaty. The leaders of North and South Korea have pledged to declare a formal end to the Korean War before the two sides sign a peace treaty. Although less binding than a treaty, declaring end of war, conflict, and hostilities is a politically binding statement. Another point of discussion is whether or not the United Nations Command in Korea should be dismantled if the Armistice Agreement is replaced with a peace treaty. Those in support of dismantling of the UN Command after a peace treaty between the two Koreas point to the legal basis for its presence on the Peninsula. They argue that the role of the UN Command, which has been in replacement of a peace treaty, ends with the signing of a peace treaty. But US troop withdrawal from South Korea should be discussed separately from the dismantling of the UN Command. While the UN Command presence is based on the Armistice Agreement, the legal basis for the US military presence on the Korean Peninsula is provided by the Mutual Defense Treaty between the Republic of Korea and the United States signed in 1953. This means that the legal basis for US military presence in Korea will not be affected or compromised by dismantling of the UN Command. In the conventional sense, a peace treaty is an agreement aimed at ending a state of war, restoring peace, and establishing borders with a mutual non-aggression pledge. The issues of war reparations, compensation for war damage, prosecution of war criminals, and repatriation of prisoners of war and civilian internees, the re-application of existing treaties or implementation of pre-conflict agreements, arms control, and international supervision in post-conflict situations could also be included in a peace treaty. Given that a peace treaty between South and North Korea is one of the steps toward a goal of a reunified Korean Peninsula, it is imperative that detailed clauses of the treaty should not only include the above-mentioned elements, but also be drawn up with a forward-looking perspective. Last but not least, both South and North Korea should make concerted efforts to pave the way for unification of the Korean Peninsula based on fundamental principles agreed upon and declared by the two sides. It is also important to recognize that inter-Korean relations are not relations between nations, but special relations established temporarily in the course of pursuing unification, and proclaim their firm determination to fully implement the existing inter-Korean agreements down the road.

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1The views expressed in this article are those of the authors and are not to be construed as representing those of The Institute of Foreign Affairs and National Security (IFANS)Director-General, Professor, Dept. of European and African Studies, The Institute of Foreign Affairs and National Security, Seoul, Republic of Korea

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